Tuesday, September 01, 2009

Who controls the corner of Carlton and Pacific? Behind a deceptive map in the 2009 Modified General Project Plan

There's something wrong with the 2009 Modified General Project Plan (GPP), property owner Henry Weinstein pointed out in comments filed Monday with the Empire State Development Corporation (ESDC): it describes his property incorrectly.

The properties, a building and two plots used as a parking lot, have a dark shade in the map, dated 11/1/06, indicating that the property is owned or controlled by Forest City Ratner. (See color version from 2006 Modified GPP. Click on all graphics to enlarge.)

Double asterixes attached to each of the three lots indicate, "FCRC has closed on an option to take by assignment the lessee's interest under the ground leases for these properties. However, the property owner has objected to such assignments."

That's no longer accurate. Weinstein has so far prevailed in court. As he wrote:
New York State courts have ruled twice that those properties have never been owned or controlled by Bruce Ratner or FCRC....

ESDC continues a pattern of intentional misrepresentation of the facts and the far worse conduct of ignoring the truth when it is brought to their attention in their continuing efforts to benefit FCRC and Bruce Ratner. ESDC even went so far as to single my property out for a special mention of condemnation to the media after my unanimous Appellant Court decision in an apparent further effort to help Bruce Ratner and blunt the decision’s meaning... My dual court cases reveal a pattern of illegal and questionable behavior which only benefits Bruce Ratner and FCRC, why ESDC is a willing partner, remains to be answered.


Given that Weinstein's tenant Shaya Boymelgreen leased the property to FCR, which immediately leased it back to him and agreed to fund litigation, the lease was clearly an effort to add Weinstein's properties--about 5% of footprint square footage--to the property the developer owned or controlled.

Thus at one point the developer could say that only about 10% of the footprint remained in private hands. Now it's nearly 15%.

From 2006

The ESDC has been using the above map, from the 2006 Modified GPP, as part of an effort to indicate that nothing has materially changed regarding the project, other than the financial terms. (That means, for example, that the document regarding the maximum heights of buildings stands, even though Forest City Ratner has reduced the height of Building 1.)

Last year I acquired a new map, dated August 2008. It was produced apparently by Forest City Ratner, but it's in the same style as the map used by the ESDC, so it may have been produced by or for the agency.

Rather than the blue-green indicating control by FCR, the map uses the color white to indicate that Weinstein's properties are not controlled by the developer.

The asterixes indicate:
FCRC acquired ground leases on these sites, but fee owner objected and sued to terminate ground leases. The Court declared lease assignments invalid and leases terminated. The decision is being appealed.


What's the default?

But the case was in court when the original map was issued. Rather than allowing the default description--Weinstein's properties in a dark color--be in Forest City Ratner's favor, shouldn't the portrayal have been more neutral?

Such a neutral map could have used the white background for Weinstein's properties, or even a different color. And the asterixes could have indicated the complication. The dark color was deceptive and now is clearly inaccurate.

Any impact?

Does any of this make a difference? It's doubtful that the ESDC board, when it votes on the project later this month, will consider the issue material. However, at the very least, it should give the members pause, especially those not on the board in 2006. And, perhaps, it will be an issue in future litigation.

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